Antitrust Law and the Four Horsemen
One of the questions that I’m researching about the Four Horsemen is how they got on the Court. If they were so reactionary (a questionable assumption), then how did they make it through the nomination and confirmation process? Part of the answer (for Sutherland and Butler) is that Warren Harding was lucky and got to name four Justices in just two-and-a-half years following a Republican landslide.
With respect to Justices Van Devanter and McReynolds, though, the answer reveals something about how judicial litmus tests work. Both men were seen as acceptable (and, indeed, desirable) because they took a strong position in favor of enforcing antitrust law. In the 1910s, a “reactionary” was someone who opposed antitrust enforcement. But McReynolds was an active prosecutor of trusts before and during his term as Attorney General. Van Devanter, meanwhile, was part of an en banc circuit decision that ruled against the Tobacco Trust, and newspaper comments at the time indicate that this made him “sound” for President Taft. In addition, the President may have picked him because he wanted a sure vote against the Tobacco Trust at the Supreme Court, as in those days ruling as a circuit judge did not compel a recusal for a Supreme Court appeal of the same case. (Chief Justice Taft also came to rely heavily on Van Devanter in the 1920s.)